Download this publication - PULP

Sandra Liebenberg 321
of broad-based strategy for achieving a general anti-retroviral roll-out
programme. 90
However, a significant disadvantage of reasonableness review is
that it does not incorporate the traditional two stage approach to
constitutional analysis. 91 Put differently, it does not begin with an
initial principled focus on the content and scope of the right and
situation of the claimants, and thereafter a consideration of possible
justifications for the infringement. 92 As a result, the Court engages
only very superficially with the content and underlying purposes and
values of the relevant rights.
5 Towards substantive reasonableness
The Court is clearly committed to the model of reasonableness
review. However, it has not excluded a role for the notion of minimum
core obligations as a factor in its evaluation of the reasonableness of
government measures. 93
This part considers how reasonableness review can be
strengthened so as to ensure that courts engage adequately with the
content of the rights and their underlying values. Such an approach
would preserve the openness and context-sensitivity of
reasonableness review that facilitates greater participation and
deliberation in interpreting the normative commitments underlying
socio-economic rights. At the same time, such an approach can assist
in ensuring that a heightened standard of review is applied in cases
involving basic needs without encountering the disadvantages
associated with the survival-based standard of minimum core
obligations. 94
90 This programme was announced by government in August 2003. See also the civil
society submission on the operational plan for the rollout of an anti-retroviral
programme entitled, ‘A people-centred ARV programme’ available at
www.tac.org.za/Documents/TreatmentPlan/FullFinalSubmissiontoARVTaskTeam.
doc (accessed 30 January 2008). See further M Heywood ‘Shaping, making and
breaking the law in the campaign for a national HIV/AIDS treatment plan’ in P
Jones & K Stokke (eds) Democratising development: The politics of socioeconomic
rights in South Africa (2005) 181.
91 For more on the relationship between internal limitations of socio-economic
rights and the general limitations clause found in FC sec 36, see S Woolman & H
Botha ‘Limitations’ in S Woolman et al (eds) Constitutional Law of South Africa
(2nd Edition, OS, 2006) Chapter 34.
92 See also Pieterse (n 32 above) 406–407.
93
n 6 above and accompanying text. In Mazibuko (n 48 above) Tsoka J interprets the
Constitutional Court judgments in Grootboom (n 2 above) and Treatment Action
Campaign (n 3 above) not as an outright rejection of the minimum core concept
as part of our law (para 131).
94 See the discussion in part 4 above.